# Raj Pal Singh and others v. State of U.P

- **Citation:** (2002) 2 ILRA 537
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002
- **Case number:** Criminal Misc. Bail Cancellation Application No. 78419 of 2001
- **Bench:** Binod Kumar Roy, R.C. Deepak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-pal-singh-and-others-v-state-of-u-p-40011
- **Pages:** 11

## Headnote

Code of Criminal Procedure - Section 482
- Section 439 (2) of the Code of Criminal
Procedure
cannot
be
invoked
for
cancellation
of
bail to a convicted
appellant who has been granted bail in
his criminal appeal under section 389 (I)
of the Code of Criminal Procedure-
Section 482 of the Code of Criminal
Procedure
recognises
existence
of
inherent powers of the High Court to be
exercised in this regard in order to
prevent abuse of the process of the
Court or otherwise to secure ends of
justice-labeling a wrong section will not
oust the jurisdiction of the Court, if it can
be traced. We , thus, hold that even
though this application has been filed
under Section 439 (2) of the Code of
Criminal Procedure, it is maintainable
under the inherent powers of this court
which
stands
recognised
by
the
Legislature vide Section 482 of the Code
of Criminal Procedure, 1973.

Held in para 15.9

That the applicant hais succeeded in
making out a case that in order to
prevent abuse of the process of the
Court and secure the ends of justice the
bail bonds of appellants are liable to be
cancelled under the inherent powers of
the Court.

## Text

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2 All] Shahendra Misra and others V. State of U.P. and others
537
electricity problem has also to be tackled
at the national level on war footing. There
was a time when electricity was only a
luxury but today in the modern age it is a
necessity, without which life becomes
hellish. Without electricity industrial
activities also come to a stand still and
normal life is totally dislocated.

7. Article 21 of the Constitution of
India has been interpreted by the Courts
to include the right to water, food and
electricity as they are essential for a life of
dignity. In our opinion, therefore, it is
duty of the authorities to ensure regular
water and electric supply to the citizens,
otherwise, their lives become miserable
and there may be civil disorders. We are
seeing on the T.V. that citizens in large
parts of Delhi, M.P., U.P. and other places
are facing the problem of shortage of
water and electricity and their lives have
become hellish. In Allahabad water is
being sold from pots carried on eccas, and
there have been Chakka Jams. As per
T.V. news a power contractor has been
killed by a mob in Delhi. As per another
newspaper report, in Nanpara township of
district Bahraich an angry mob of people,
incensed over the lack of electricity, took
out a procession, burnt a roadways bus,
destroyed 3 transformers, stoned the
police station and residences of the power
department officials, closed the shops,
and they were lathi charged by the police
causing several injuries. In another
incident rail traffic on the Kanpur Delhi
section of Northern Railway was affected
after an angry mob, protesting erratic
power supply and drinking water shortage
blocked movement of trains and damaged
the railway tracks. In Sambalpur in Orissa
students protesting against power shortage
were fired upon by the police causing
several injuries, some of them reportedly
critical. Many such incidents all over the
country are being reported by the media
every day. On T.V. screens scenes of
parched and cracked agricultural fields in
many parts of the country appear daily,
and there is danger of famine due to
failure of the monsoons. This problem
should be tackled on the highest level,
otherwise the consequences may be very
serious.

8. Let a copy of this order be sent by
the Registrar General of this court to the
Secretary,
Power
and
Energy
Departments, Government of India as
well as the Attorney General of India and
the Solicitor General who shall submit a
report to this Court as to what action is
being taken by the Central Government
for making a national level plan for
resolving this problem of water and
electricity shortage which has become
night-mare for the whole nation. A copy
of this order shall also be sent to the Chief
Secretary U.P.

9. List this petition before us on
5.8.2002 on which date we request the
learned Attorney General of India or
Solicitor General to be personally present
before us.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD JULY 17, 2002

BEFORE
THE HON'BLE BINOD KUMAR ROY, J.
THE HON'BLE R.C. DEEPAK, J.

Criminal Misc. Bail Cancellation
Application No. 78419 of 2001

Raj Pal Singh and others
...Appellants
Versus
State of U.P.

 ...Opposite Party
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
538
Counsels for the Applicant:
Sri G.S. Chaturvedi
Sri A.K. Sachan
Counsels for Appellants:
Sri V.P. Sriv astava
Sri Akilesh Srivastava

Counsel for the State:
Sri J.P. Singh,
Addl. Government Advocate

Code of Criminal Procedure - Section 482
- Section 439 (2) of the Code of Criminal
Procedure
cannot
be
invoked
for
cancellation
of
bail to a convicted
appellant who has been granted bail in
his criminal appeal under section 389 (I)
of the Code of Criminal Procedure-
Section 482 of the Code of Criminal
Procedure
recognises
existence
of
inherent powers of the High Court to be
exercised in this regard in order to
prevent abuse of the process of the
Court or otherwise to secure ends of
justice-labeling a wrong section will not
oust the jurisdiction of the Court, if it can
be traced. We , thus, hold that even
though this application has been filed
under Section 439 (2) of the Code of
Criminal Procedure, it is maintainable
under the inherent powers of this court
which
stands
recognised
by
the
Legislature vide Section 482 of the Code
of Criminal Procedure, 1973.

Held in para 15.9

That the applicant hais succeeded in
making out a case that in order to
prevent abuse of the process of the
Court and secure the ends of justice the
bail bonds of appellants are liable to be
cancelled under the inherent powers of
the Court.

(Delivered by Hon'ble B.K. Roy, J.)

This order dispose of Criminal Misc.
Bail Cancellation Application No. 78419
of 2001 which involves adjudication of
following questions:

(i) Whether in the peculiar facts and
circumstances we will be justified, instead
of disposing of this application, in taking
up hearing of Criminal Appeal No. 282 of
1991, which stood listed at Serial No. 182
of our list out of turn in preference to
Criminal Appeals of the year ?

(ii) Whether
the
High
Court
has
jurisdiction to cancel the bails which were
granted to the appellants at the time of
admission of their Criminal Appeal No.
282 of 1991 ? and
Whether, if the answer to question no. (ii)
is in the affirmative, in the peculiar facts
and circumstances we should exercise that
jurisdiction ?

2. Firstly the facts:- Through this
application, filed on 20.8.2001, after
serving its copy on the learned counsel for
the appellants on 17.8.2001, the Informant
Rakesh Pal singh of Sessions Trial No.
358 of 2001 of the Court of Sessions,
Aligarh, who is uncle of the Informant of
the case giving rise to the Criminal
Appeal, has come up with a prayer to
cancel the bails granted to the appellants
and send them to jail asserting, inter alia
to the following effect :-

(i) His own elder brother Amrit Pal
Singh was brutally murdered in broad day
light on 1.7.1989 by Appellant Nos. 1 to 5
Raj Pal, Bhojraj alias Pappu, Rishi Pal,
Jagannath Kahar and Ashok Kumar
respectively which was witnessed by his
own son sushil Kumar alias Pintoo, then
aged 11 years (P.W.4) and his nephew
Satendra Pal Singh (PW 3), who was
Informant, Vijendra Pal Singh (PW 6). By
the Judgement and Order dated 21.2.1991
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2 All] Raj Pal Singh and others V. State of U.P.
539
passed by Sri Pradumn Kumar Special
Judge (EC Act) Aligarh the Appellants
were found guilty and convicted and
sentenced to undergo imprisonment for
life under Sections 302/149 IPC, Rigorous
Imprisonment for 5 years under Sections
307/149
I.P.C.
and
Rigorous
Imprisonment for 2 years under Section
148 I.P.C. directing the sentences to run
concurrently.

(ii) The appellants preferred Criminal
Appeal No. 282 of 1991, which was
admitted and they were granted bail.

(iii) Thereafter on several occasions the
appellants threatened the applicant and his
son Sushil Kumar @ Pintoo for dire
consequences pressurising them not to do
pairvies in this appeal. Sushil Kumar @
Pintoo was shifted to Agra where he
completed his studies. The applicant
orally requested the Station Officer P.S.
Hathras Junction but no First Information
Report was lodged by him. An application
dated
27.4.2001
(as
contained
in
Annexure-1) was also filed for expediting
the final hearing of the Criminal Appeal
by Satendra Pal Singh P.W.3- (the son of
the deceased Amrit Pal Singh) and
Hon'ble the Chief Justice realising the
gravity of the matter was pleased to
expedite the hearing of the Criminal
Appeal.

(iv) On 19.7.2001 Sushil Kumar @
Pintoo (PW 4) who was doing pairvi in
the appeal and was an eye-witness came
to village from Agra and was murdered
by Appellants Nos. 1 to 3 and 5 in broad
day light and a First Information Report
dated
19.7.2001
(as
contained
in
Annexure -2) was lodged against them.

(v) Appellant Nos. 1 to 5 are hardened
criminals who have framed a criminal
gang in the village and threatened the
applicant and his family members on
several occasions as a result of which the
applicant and the members of his family
had restricted their movement.

(vi) The applicant after the murder
started doing pairvi in this Criminal
Appeal and the other murder case and
apprehends another murder.

(vii) Since the appellants have misused
their bail, thus it would be expedient in
the interest of justice that their bail be
cancelled forthwith.

3. On 3.4.2002 the appellants filed
their
Counter
Affidavit
and
Supplementary Counter Affidavit along
with a request for condonation of delay
occurred in its filing, asserting, inter alia
to the effect that they have been falsely
implicated, since the hearing of the appeal
has been expedited and even though it
was listed a number of times for hearing
but could not be taken up and thus under
that impression no Counter Affidavit was
filed by them, all the appellants, except
appellant Raj Pal Singh, who is aged 75
years, have been implicated in a case
under the Gangster Act and they have not
been released on bail till date, it has been
wrongly stated that they have threatened
the informant's side, 4 out of them have
been implicated in regard to murder of
Sushil Kumar alias Pintoo in which they
have been granted bail by this Court , a
false case has been cooked up just to get
their bails cancelled although they have
never mis-used the privilege of the bail
granted to them, and that the application
has no force and is liable to be rejected.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
540
4. The applicant filed a Rejoinder to
the Counter Affidavit high lighting, inter
alia, that the expedite application was
moved on 27.4.2001 and soon thereafter
on 19.7.2001 Sushuil Kumar Singh alias
Pintoo,
was
brutally
murdered
by
Appellant nos. 1,2,3 and 5 which was
witnessed by Virendra Singh @ Vintoo, a
true copy of his statement is appended as
Annexure RA 1, the appellants have misused the privilege of bail by committing
murder and in that case a charge sheet
was
submitted
on
30.8.2001
(copy
appended as Annexure RA 2) and the
trial, numbered as Sessions Trial No.
3578 of 2001, was committed to the Court
of Sessions by order dated 12.9.2001
(copy appended as Annexure RA 3) and
that the appellants are trying to linger the
same and their acts being deliberate the
reason for ignoring the delay in filing of
the counter are not sustainable in law.

5. The criminal Appeal was listed
before us on 1.4.2002 and was placed at
serial no. 182 of the list. Our Board also
was pre-occupied with 'Fresh Criminal
Writs and Writ Petitions for the year 1996
for Orders, Admission and Hearing
including Bunch Cases and Old Criminal
Appeals."

5.1. On that day a motion was made
by Sri Gopal S. Chaturvedi, learned
Senior Counsel for the applicant, to take
up this application on the ground that
since there is no chance of taking up the
hearing of this Criminal Appeal and hence
for the facts and circumstances mentioned
in
the
affidavit
accompanying
this
application,
to
which
no
Counter
Affidavit was filed since then, the bail
granted to the appellants be cancelled.

5.2. On 2.4.2002 Sri V.P. Srivastava,
learned counsel appearing on behalf of the
appellants, had prayed for adjournment on
the ground that a Counter Affidavit has
been prepared and presented before the
Oath Commissioner for its swearing. The
further
hearing
was
adjourned
to
3.4.2002.

5.3. This application was further
heard on 3.4.2002 and 11.4.2002 and
orders were reserved.

The Submissions:-

6. Sri Gopal S. Chaturvedi, learned
Senior Counsel appearing on behalf of the
applicant with
reference to various
statements
made
in
the
affidavit
accompanying the expedite application,
this application and the rejoinder to the
Counter Affidavit, contended that since
the action of the appellants has resulted in
abuse of the process of the Court it is a fit
case in which the bails granted to the
appellants should be cancelled to prevent
the abuse of the process of this Court and
to secure the ends of justice since they
have abused the privilege of bail. He
emphasized that the relevant allegations
made in the Expedite application were not
denied till its disposal by Hon'ble the
Chief Justice on 3.8.2001 and the
statements made in the Counter affidavit
of this application, which was filed after
its hearing, are lame excuses. It cannot be
denied that one of the most important
witness of the Prosecution has been
murdered during the pendency of the
Expedite application in which chargesheet has been submitted.

7. Sri V.P. Srivastava, learned
counsel appearing on behalf of the
appellants , on the other hand, contended
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2 All] Raj Pal Singh and others V. State of U.P.
541
that
the
instant
application
is
not
maintainable under section 439 (2) of the
Code of Criminal Procedure since that
provision is not applicable, that instead of
taking up this application on its merit it
will be in the ends of justice to take up the
hearing of the Criminal Appeal itself for
its disposal on its merit, and if it is held
alternatively that the instant application is
maintainable, then it be dismissed as
sufficient grounds justifying cancellation
of bails have not been made out.

8.
The
learned
Additional
Government Advocate supported the
arguments of Sri Chaturvedi, who in reply
contended
that
this
application
is
maintainable under section 439 (2) Code
of Criminal Procedure or in any view of
the matter under the inherent powers of
the Court.
Our Findings :-

Re- Question No. (i)

9. This Criminal Appeal was listed
first before a Division Bench comprising
G.P.Mathur and R.P. Misra, JJ. The said
Bench, however, passed the following
order on 4.2.2000:-

"This is a Criminal Appeal of the
year 1991, which has been expedited by
the orders of Hon'ble the Chief Justice
dated 3.8.2001. Learned counsel has
submitted
that
the
appellants
have
committed some more murders and
consequently
the
application
for
cancellation of bail and also the appeal be
heard finally. This Court is hearing fresh
matters in writ petitions relating to
recovery,
land
acquisition,
mines,
minerals, and service writ petitions
relating to judicial officers. Nearly 160
writ petitions are being listed every day
for admission and hearing. It is therefore,
not possible for us to hear the criminal
appeal
in
the
near
future.
It
is,
accordingly, directed that the appeal may
be listed before the regular Bench hearing
criminal appeals in the next cause list.
The appeal shall not be treated as tied up
to this bench."

9. 1 Thereafter this Criminal Appeal
was listed at serial no. 182 of our list
dated 1.4.2002. Several Criminal Appeals
of the years 1981, i.e. to say 10 years
older, were listed above the instant
appeal. As per the roster fixed by Hon'ble
the Chief Justice we are required to take
up the criminal appeals for their hearing
from 3.00 P.M. Our list is so heavy that
many cases listed every day are not taken
up to 3.00 P.M. As our working hours is
only upto 3.45 P.M., thus we get only 45
minutes time for hearing a Criminal
Appeal.

9. 2. Hon'ble the Chief Justice broke
our Bench with effect from Monday dated
22.4.2002.

9.3. Summer Vacation of the Court
commenced from 27.5.2002 and the Court
re-opened on 1.7.2002.

9.4 Thus, the prayer made by Sri
V.P. Srivastava that we should not
dispose of this application rather we
should take up the hearing of the Criminal
Appeal itself cannot be accepted .
Question No. (I) is answered against the
appellants.

Re-Question No.(ii)

10. Relevant sections for our
consideration are sections 389 (1) & (2),
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
542
439 and 482 of the Code of Criminal
Procedure, which reads as follows :-

"389.
Suspension
of
sentence
pending the appeal, release of appellant
on bail- (1) Pending any appeal by a
convicted person, the Appellate Court
may, for reasons to be recorded by it in
writing, order that the execution of the
sentence or order appealed against be
suspended
and,
also,
if
he
is
in
confinement, that he be released on bail,
or his own bond.

(2) The power conferred by this section
on an Appellate Court may be exercised
also by the High Court in the case of an
appeal by a convicted person to a Court
subordinate thereto ..."

x

x

x

439. Special powers of High Court or
Court of Sessions regarding bail - (1) A
High Court or Court of Sessions may
direct -

(a) that any person accused of an offence
and in custody be released on bail, and if
the offence is of the nature specified in
sub- section (3) of section 437, may
impose any condition which it considers
necessary for the purposes mentioned in
that sub section.

(b) that any condition imposed by a
Magistrate when releasing any person on
bail be set aside or modified.

Provided that the High Court or the
Court of Session shall, before granting
bail to a person who is accused of an
offence which is triable exclusively by the
Court of Session or which, though not so
triable, is punishable with imprisonment
for life, give notice of the application for
bail to the Public Prosecutor unless it is,
for reasons to be recorded in writing, of
opinion that it is not practicable to give
such notice.

(2) A High Court or Court of Session
may direct that any person who has been
released on bail under this Chapter be
arrested and commit him to custody..."

"482. Saving of inherent powers of
High Court- Nothing in this code shall be
deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect
to any order under this Code, or to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice".

11. Following order was passed at
the time of admission of the Criminal
Appeal-
"Heard.
Admit.
Issue Notice.

The appellants Rajpal, Bhoj Raj alias
Pappu, Rishipal, Jagan Nath Kahar and
Ashok Kumar convicted in S.T. No. 519
of 1989 State Vs. Rajpal and others under
sections 147, 148, 307 and 302 IPC, PS ,
Hathras Junction, district Aligarh are
released on bail on each of them
furnishing a personal bond and two
sureties each in the like amount to the
satisfaction of the CJM Aligarh . Sd/-
Surya Prasad, J."

11.1 Surya Prasad, J had retired long
time back.

11.2 The order granting bail to the
appellants at the time of admission of the
Criminal Appeal shows that this Court
had exercised its jurisdiction to grant bail
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2 All] Raj Pal Singh and others V. State of U.P.
543
to the appellants vested under sub sections
(1) and (2) of Section 389 of the Code of
Criminal Procedure which falls under
Chapter XXIX of the Code of Criminal
Procedure. We remind ourselves of a
decision of the Hon'ble Supreme Court in
Ramji Prasad V. Rattan Kumar Jaiswal
and another 2000 (3) A.Cr.R. 1891 (SC),
when a learned Single Judge of our High
Court granted bail to an appellant without
recording any reason who was found
guilty of the offence under section 302
IPC by the trial court, while setting aside
that order of the learned Single Judge, it
was observed and held as follows:-

"Absolutely no reason is shown by
the learned Single Judge for adopting this
exceptional course in a case where an
accused was found guilty by the trial
court under section 302 of the Indian
Penal Code. The normal practice in such
cases is not to suspend the sentence and it
is only in exceptional cases that the
benefit of suspension of sentence can be
granted."

11.3. Section 439 of the Code of
Criminal Procedure which vests special
powers in this Court regarding bail occurs
in Chapter XXXIII of the Code of
Criminal Procedure. Clause (2) of Section
439 aforementioned vests powers in this
Court to arrest a person who has been
released on bail under Chapter XXXIII
and commit him to custody.

11.4. Thus in our humble view
section 439 (2) of the Code of Criminal
Procedure
cannot
be
invoked
for
cancellation of bail to a convicted
appellant who has been granted bail in his
Criminal Appeal under section 389 (1) of
the Code of Criminal Procedure.

11.5 However, section 482 of the
Code of Criminal Procedure recognizes
existence of inherent powers of the High
Court to be exercised in this regard in
order to prevent abuse of the process of
the Court or otherwise to secure ends of
justice.

11.6 This conclusion of our stands
well settled by following eight decisions
of the Hon'ble Supreme Court :-

(i) In Talab Maji Hussain v. M.P.
Mondkar AIR 1958 SC 376 it was held
after affirming three decisions of our own
High Court in Mohammad Ibrahim V.
Emperor AIR 1932 Allahabad 534, Seoti
V. Rex AIR 1948 Allahabad 368 (Full
Bench) & Bache Lal V. State AIR 1951
Allahabad 836 to the effect that the High
Court has inherent powers to cancel bail
even in bailable offences in a proper case
and in the interest of justice and the tests
specified in Section 561 -A of the Code of
Criminal Procedure, 1898.

(ii) In Pampapathy V. State of Mysore
AIR 1967 SC 286 it was laid down that
the High Court has inherent power to
cancel an order of suspension of sentence
and grant of bail to an appellant made
under section 426 of the Code of Criminal
Procedure if the allegation against him
prima facie indicates that he is misusing
liberty granted to him and indulging in
acts of violence to prevent abuse of
process of the Court.

(iii) In Ratilal Bhanji Mithani v. Asstt.
Collector of Customs, Bombay and
another AIR 1967 SC 1639 it was laid
down to the effect that if any accused of a
bailable offence is found (a) intimidating,
or (b) bribing , or (c) tampering with the
prosecution witnesses or (d) is attempting
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
544
to abscond, the High Court has inherent
powers to cause him to be arrested by
cancelling his bail which jurisdiction
springs from its over-riding inherent
powers.

(iv) In Dolat Ram v. State of Haryana
(1995) 1 SCC 349 it was laid down that
following principles are required to be
considered by a Court while cancelling
bail already granted:-

"Very cogent and overwhelming
circumstances are necessary for an order
directing the cancellation of the bail
already granted. Generally speaking, the
grounds for cancellation of bail broadly
(illustrative and not exhaustive) are
interference or attempt to interfere with
the due course of administration of justice
or evasion or attempt to evade the due
course of justice or abuse of the
concession granted to the accused in any
manner. The satisfaction of the court, on
the basis of material placed on the record
of
the
possibility
of
the
accused
absconding
is
yet
another
reason
justifying
the
cancellation
of
bail.
However, bail once granted should not be
cancelled in a mechanical manner without
considering whether any supervening
circumstances have rendered it no longer
conducive to a fair trail to allow the
accused to retain his freedom by enjoying
the concession of bail during the trail."

(v) In Subhendu Misra versus Subrat
Kumar Misra AIR 1999 SC 3026 it was
observed that the principles laid down in
Dolat Ram's case ought not to have
ignored by the High Court.

(vi) In R. Rathinam versus State AIR
2000 SC 1851 it was held as follows :-

"The frame of sub section (2) of
Section 439 indicates that it is a power
conferred on the said courts. Exercise of
that power is not banned on the premise
that bail was earlier granted by the High
Court on judicial consideration. In fact the
power can be exercised only in respect of
a person who was released on bail by an
order already passed. There is nothing to
indicate that the said power can be
exercised only if the State or investigating
agency or even a Public Prosecutor moves
for it by a petition. The power so vested in
the High Court can be invoked either by
the State or by any aggrieved party. The
said power can also be exercised suo
motu by the High Court. If so, any
member of the public, whether he belongs
to any particular profession or otherwise,
who has a concern in the matter can move
the High Court to remind it of the need to
invoke the said power suo motu. There is
no barrier either in Section 439 of the
Code or in any other law which inhibits a
person from moving the High Court to
have such powers exercised suo motu. If
the High Court considers that there is no
need to cancel the bail for the reasons
stated in such petition, after making such
considerations it is open to the High Court
to dismiss the petition. If that is the
position, it is also open to the High Court
to cancel the bail if the High Court feels
that the reasons stated in the petition are
sufficient enough for doing so. It is,
therefore, improper to refuse to look into
the matter on the premise that such a
petition is not maintainable in law. (Para
8)"

(vii) In Puran Versus Ram Bilas AIR
2001 SC 2023 it was observed as
follows:-
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2 All] Raj Pal Singh and others V. State of U.P.
545

"Generally speaking, the grounds for
cancellation of bail are interference or
attempt to interfere with the due course of
administration of justice or evasion or
attempt to evade the due course of justice
or abuse of the concession granted to the
accused in any manner. However, these
instances are merely illustrative and not
exhaustive."
x

x

x

"Further, it is to be kept in mind that
the concept of setting aside the unjustified
illegal or perverse order is totally different
from the concept of cancelling the bail on
the
ground
that
the
accused
has
misconducted himself or because of some
new facts requiring such cancellation."

(Viii)
Very recently in Ram Govind
Upadhayay Versus Sudarshan Singh and
others (2002) 3 SCC 598 it was observed
and held as follows :-

"8. While it is true that availability of
overwhelming circumstances is necessary
for an order as regards the cancellation of
a bail order, the basic criterion, however,
being interference or even an attempt to
interfere
with
the
due
course
of
administration of justice and/or any abuse
of the indulgence/privilege granted to the
accused.

9.
Undoubtedly,
considerations
applicable to the grant of bail and
considerations for cancellation of such an
order of bail are independent and do not
overlap each other, but in the event of non
consideration of considerations relevant
for the purpose of grant of bail and in the
event an earlier order of rejection
available on the records, it is a duty
incumbent on the High Court to explicitly
state the reasons as to why the sudden
departure in the order of grant as against
the rejection just about a month ago. The
subsequent
FIR
is
on
record
and
incorporated therein are the charges under
Sections 323 and 504 IPC in which the
charge sheet have already been issued the
court ought to take note of the facts on
records rather than ignoring them. In any
event, the discretion to be used shall
always have to be strictly in accordance
with law and not dehors the same. The
High Court thought it fit not to record any
reason, far less any cogent reason, as to
why there should be a departure when in
fact such a petition was dismissed earlier
not very long ago."
x

x

x

"10....Tempering with the evidence
and threatening of the witnesses are two
basic grounds for cancellation of bail-
both these two factors stand alleged and
by reason of subsequent filing of the
charge sheet therein..."

12. It is well settled that labelling a
wrong
section
will
not
oust
the
jurisdiction of the Court, if it can be
traced. We, thus, hold that even though
this application has been filed under
section 439 (2) of the Code of Criminal
Procedure it is maintainable under the
inherent powers of this court which stands
recognized by the Legislature vide section
482 of the Code of Criminal Procedure,
1973.

13.
We
thus
over-rule
the
preliminary objection raised by Sri V.P.
Srivastava
in
regard
to
nonmaintainability of the instant application
and proceed to adjudicate it on its merits.
Question no. (ii) is answered accordingly.

14. Re-Question No. (iii)
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
546
Amrit Pal Singh, who was the own
brother of the applicant Raksha Pal Singh,
was murdered on 1.7.1989. Sessions Trial
No. 519 of 1989 State Vs. Raj Pal and
others under sections 147, 148 , 307 and
302 IPC related to the murder of Amrit
Pal Singh in which Sushil Kumar alias
Pintoo, the son of the applicant Raksha
Pal Singh was PW 4-the child eye witness
On the basis of the testimony of Sushil
Kumar alias Pintoo and other witnesses
the appellants were convicted by the
judgement and order under appeal.

15. It
was
on
26.4.2001
that
Satendra Pal Singh, son of the deceased
Amrit Pal Singh had moved an Expedite
Application No. 339853 of 2001 for
expediting the final hearing of the
Criminal Appeal.

15.1 Paragraph 3 of the Affidavit
accompanying the Expedite Application
reads as follows :-

"That,
the
aforesaid
appellant
hardend
criminal
and
they
are
continuously threatening the applicant-
complainant and his family members and
causes to loss to the life and property of
the complainant by assaulting and making
criminal attempt over the appellant."

15.2 No Counter was filed by the
appellants to the aforesaid Affidavit.

15.3. Undisputedly during pendency
of the expedite application Sushil Kumar
@ Pintoo PW 4 was murdered on
19.7.2001 and a First Information Report
was lodged on that very date. True it is
that the appellants against whom the
allegation of his murder was made were
granted bail by this Court but nevertheless
it is equally true that a charge sheet was
submitted against them on 13.8.2001 and
the trial has been committed to the Court
of Sessions on 12.9.2001 registered as
Sessions Trial No. 358 of 2001.

15.4 The hearing of the Criminal
Appeal was directed to be expedited vide
order dated 3.8.2001 of the Hon'ble Chief
Justice.

15.5 Thus we accept the correctness
of the stand of the Applicant that
considering the aforesaid facts Hon'ble
the Chief Justice had passed an order
expediting the hearing of the Criminal
Appeal.

15.6 It is equally true that except
appellant no. 1 Raj Pal Singh all other
appellants are involved in a Gangster Act
case and are allegedly in Jail.

15.7 The aforementioned facts and
circumstances prima facie prove that the
appellants have mis-used the privilege of
bail granted to them.

15.8 We
also
hold
that
the
explanation in regard to non filing of the
Counter Affidavit earlier rather only on
the second day of hearing of this
application does not appear to be
convincing.

15.9 Having reminded ourselves of
the tests laid down by the Hon'ble
Supreme Court we hold that the applicant
has succeeded in making out a case that in
order to prevent abuse of the processs of
the Court and secure the ends of justice
the bail bonds of appellants are liable to
be cancelled under the inherent powers of
the Court.
http://www.allahabadhighcourt.nic.in
2 All] Rakesh Shukla V. District Magistrate, Allahabad and others
547
15.10 Accordingly, in the result
without expressing our opinion on merits
of the accusations made against the
appellants that they had committed the
murder of PW 4 or that they are Gangster
within the meaning of the Gangster Act,
we cancel the bails granted to them
pursuant to the Court's order dated
22.2.1991, forfeit the bail bonds and
discharge the sureties furnished.

16. Question no. (iii) is answered
accordingly.

17. We clarify that if they are in jail
in connection with any criminal case, then
they shall remain therein during pendency
of their criminal appeal no. 282 of 1991
in this Court, or if they have been granted
bail, then they shall be taken into custody
and sent to jail.

18. This application is allowed.

19. Let a copy of this order be sent
forthwith by the office to the Chief
Judicial Magistrate, Hathras to ensure
compliance of our directions by him and
all concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.7.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE D.R. CHAUDHARY, J.

Civil Misc. Writ Petition No. 25780 of 2002

Rakesh Shukla

...Petitioner
Versus
District
Magistrate,
Allahabad
and
another

 ...Respondent

Counsel for the Petitioner:
Sri R.K. Yadav
Counsel for the Respondents:
Sri Vivekanand Srivastava
S.C.

Constitution
of
India,
Article
226-
Recovery
Proceeding-
Petitioner
operated
theka-
not
deposited
the
money- recovery proceeding challenged
mode of realisation as arrears of land
revenue- not permissible in view of
decision reported in 1985 ACJ 615- even
then High Court can declined to exercise
its power under Article 226 if the law
and equity is not in his favour.

Held. Para 2

In the present case even assuming that
the law has been violated because the
recovery could not be made as arrears of
land revenue yet there is no equity in
favour of the petitioner. The petitioner
has not disputed his liability to pay the
amount in question. He really wants to
delay payment. It is well known that civil
suits take years and years to decide.
Hence this is not a fit case for exercising
our writ jurisdiction under Article 226 of
the Constitution of India.
Case law discussed:
1985 ACJ 615

(Delivered by Hon'ble M. Katju, J.)

1. The petitioner took a Theka in
respect of which the impugned recovery
has been issued. The petitioner has not
disputed that he has operated the Theka
but he is not paying the Theka money. He
is challenging the recovery certificate on
the ground that the recovery could not be
made as arrears of land revenue and he
has relied upon a decision of this Court
reported in 1985 ACJ 615 Raj Bahadur
Singh Vs. Collector, Etah and others.

2. In our opinion this is not a fait
case for exercise of our discretion under
Article 226. Writ is a discretionary